Who takes care of your Estate's Digital Assets?

The following is an excerpt from an article by Dennis Kennedy, an information technology lawyer who authors a monthly  column in the American Bar Association Journal.  You can find the full text of the article at http://www.abanet.org/lpm/lpt/articles/ftr03103.shtml

Andy Olmsted was a rare individual, in no small part because he is one of the few who thought carefully about what would happen to his online presence if he were to die. A popular blogger, Olmsted wrote a post before he left for service in Iraq, along with instructions for his survivors to post it to his blog in the event he was killed in action. Unfortunately, it had to be posted. I read the post on the day it appeared in 2008, and I re-read it when I prepared to write this article. It remains for me one of the most moving posts in the history of blogging http://obsidianwings.blogs.com/obsidian_wings/2008/01/andy-olmsted.html.

Tips for Providing Digital Assistance After the Death of Another

It’s also possible that either as a survivor, you might find yourself in a position where you need to handle someone’s digital affairs. I have a few tips.

• Find knowledgeable technical and legal help.
• In the case of a death, try to get to contact lists, e-mail accounts and social media accounts to notify friends who the deceased would want to be notified.
• Change all passwords as soon as possible.
• Try to understand the totality of the person’s online presence and identify some of the people he or she has interacted with most for assistance, especially in the social media platforms.
• Do not start closing accounts, shutting down hosting and e-mail, or taking other drastic steps until you have a good sense of the individual’s presence and what you are ultimately going to do with it. Keeping a Web site up for a year or more will not be expensive. Shutting it down too early and losing valuable data could be quite expensive.
• Be slow to delete, but when you delete or dispose of computers and drives, delete in accordance with forensic standards so data cannot be retrieved by others.
• Spend $100 on an external USB hard drive and make a copy of all hard drives, flash drives and other data and keep them in one safe place. Once you start to go through the data, you can keep another drive with the “good stuff.”
• Make copies of Web sites and other online accounts.
• Locate all the financial information and client records as soon as possible and aggregate and isolate them.
• Remove credit card information from shopping accounts.
• Err on the side of keeping e-mail, documents and photographs for family members.

Nobody loves a financial roller coaster

It has been said that the most expensive purchase most American's make
is the purchase of their home. It has also been said that buying a home
is an excellent investment in the future. In most cases, those two ideas
are accurate. However, in recent years we have seen far too many
examples of people, and families, who have purchased a home, only to
lose it unexpectedly. The specific reasons vary, but the root cause is
often the same. The buyer entered into a contract that they didn't fully
understand, or could not comply with in the long term.

Short sales, foreclosure, and bankruptcy are all financial stumbling
blocks that most of us would prefer to avoid. But avoiding a high-speed
ride on a financial roller coaster requires planning, careful
consideration, and often – solid advice from a professional. The bigger
the purchase, the more complex the repayment, the more likely it is that
you would benefit from having someone sitting on your side of the table
on the closing date to provide some peace of mind.

I think we can agree that it would be unreasonable to expect a 16 year
old to walk into a car dealership alone and negotiate a truly great deal
on their first car. The complexity of the purchase, combined with the
buyers inexperience, automatically slants the negotiation in the dealers
favor. And while the teenager may walk out of the showroom the proud
owner of a shiny new car – the cost of that transportation is likely to
be significantly higher than it had to be.

The same is true for most of us when we purchase a home. Although we may
be considering spending ten times more than we spent on our last new
car, we have a tendency to believe we can go it alone, and still come
out on top somehow. And sometimes we do. Then again, sometimes we find
out that there was a troublesome clause, codicil, lien, or deed
restriction that we missed when we went over the paperwork. Or perhaps
we learned too late that the fantastic interest rate we locked into for
the life of the loan, was actually only for a short period of time,
causing our mortgage payments to skyrocket in a totally predictable, but
completely unexpected way, right when we could afford it least.

This is a historically great time to be in the market for a home. That
is especially true if your credit is good and you have a healthy down
payment on hand. But neither of those two factors will guarantee that
you get the best deal you can get. And neither that enviable credit
score or the hefty down payment will assure you of a contract that is
truly fair and equitable all around.

The year 2010 just might be a great time to buy, if you're prepared and
walking into real estate negotiations with your eyes wide open and a
proven professional at your side. But then, with those tremendous
benefits working in your favor, almost any year would be a good time to
buy.

Sometimes you need a helping hand

Lawyers have a lot in common with doctors. We have a lot in common with
auto mechanics, too. In all three professions you can find general
practitioners, and others who concentrate on a specific area in
interest. It's important to know which to call when you go looking for
help.

Maybe you have a sore elbow, or need the oil changed in your SUV before
going on vacation. In those cases, the general practitioner is probably
all you need. But when your heart needs attention, it's in your best
interest to see someone who spends a bit more time focused on the health
and wellness of the heart. Along those same lines, you probably wouldn't
feel comfortable bringing your car in for a tune-up, if your car was a
vintage Corvette, and the mechanic's workspace was situated in a shady
spot under a big maple tree.

There are times when you need someone who has chosen to concentrate
mores intensely on one or two specific areas of their profession. It's
the natural choice under certain circumstances.

Occasionally, I have been asked how it is that I came to focus on such a
unique segment of the law. It's a good question, so I have always been
proud to answer it with a short story. The truth is I am fortunate
enough to come from a family with very good genes. We seem to live a
long time. Especially the women in my family. As an example I can point
to my grandmother and her sisters. Of the five sisters, three lived into
their 90s. They were active and vibrant through almost their entire
lives, too. My grandmother lived to be 100 years old, which is a
remarkable milestone in anyone's book.

As the only lawyer in the family, I was often called on to provide
advice, review a contract, or explain some esoteric aspect of the law to
a brother, or a sister, or my parents. These requests were no more
frequent from my aunts or my grandmother than they were from any other
member of my family, but it became apparent to me that the importance of
obtaining good legal advice actually becomes more important as we age.

If you're 25 years old and you make a significant financial mistake, you
have decades of your working life ahead of you. The odds are good that
you can overcome that mistake, and learn from it. On the other hand, if
you're 75 years old it's likely that your mistakes will have a far more
profound impact on the quality of your lifestyle during retirement.
Those mistakes may even cause you to lose control of property or assets
that you had hoped to keep.

I picked the areas of the law I would pursue most passionately based on
the simple fact that I experienced the importance of solid legal
representation as we reach our golden years, right in my own family.
Those experiences made an impression on me that I have never forgotten.
And so I chose to practice in the less common areas of Living Trusts,
Probate, and Elder Law. A choice that I have never regretted.

Of course, just as the oncologist can clean a wound and put on a
bandage, my primary focus does not prevent me from helping my clients in
areas other areas of the law. However, I have found that my experience
in those unique areas has given a number of my clients a sense of
security at a time in their lives when security was particularly
important.

I'm proud of that. I'm proud of my grandmother and her sisters, too. So
feel free to ask about them some time. I would be happy to share a story
or two about some pretty remarkable women who helped to mold me into the
woman, and the lawyer, I am today.

A short discussion on abuse

I always find it heartbreaking when I come across a news story about
child abuse. It is hard for me to reconcile the thought that a poor,
defenseless child has been taken advantage of – often by a caregiver, a
relative, or even their own parents.

On the other end of the age spectrum there is another form of abuse that
makes the news much less often, but occurs far too frequently. Elder
abuse is not often reported, perhaps for reasons that have more to do
with pride or shame than the personal risk it represents. However elder
abuse is a real issue that deserves our attention so that it can be
prevented and stopped.

Elder abuse, like child abuse, involves a stronger individual or group
taking advantage of a weaker individual or group. The abuse can be
physical, sexual, emotional, financial, or it may be in the form of
simple neglect. Regardless of the form it takes, elder abuse can be a
horrible situation to endure, and it can be life threatening if not
dealt with when it occurs.

The key to preventing elder abuse involves listening to those who may be
victimized, as well as their caregivers. They may have a story to tell,
if we have the patience to listen. We need to speak out, too. Elder
abuse is no different than any other type of abuse. It is not a shameful
burden for the victim to bear, it is a potentially criminal act that
needs to be stopped. So speak up, talk to your friends and neighbors.
Share your concerns with family members. There are many cases where
abuse can be prevented or stopped by simply acknowledging it and making
it clear that you will not stand for such a violation.

If abuse is suspected it is imperative that we intervene. You are not
alone in this. There is help available for the victims of abuse, and
that help has the backing of the legal system. None of us should have to
live in fear, regardless of whether we are preschoolers, or senior
citizens.

Resurrection of the Death Tax?

The absence of rules for the estate tax is concerning.  Greg Turza is a fellow estate planning attorney who practices in Skokie, IL.   He read a recent article on the estate tax situation, and what follows is his summary.  His post also includes a link to the more detailed article.  And you are welcome to contact me with any of your questions.   

The good news is the estate tax is repealed! The bad news is, not for long. Since Bush's 2001 tax cuts went into effect the exemption from estate taxes climbed year by year from $1 million to a high of $3.5 million in 2009.

This year, 2010, is the repeal year but the Bush administration could never garner the 60 votes he needed in the senate to make the repeal permanent.
The consequence is the so-called "sunset" rule. As of January 1, 2011 the law automatically goes back to the way it was in 2001. In the case of the estate tax that means only a $1 million exemption and a top 55% tax rate.

The Obama administration advocates extending the 2009 exemption of $3.5 million on a permanent basis. This appeared to be where the Senate was headed on May 18th when an agreement was reached that had the support of more than 60 senators.

But the deal fell apart when the Democratic leadership decided that it will not allow the legislation to come to the floor for a vote unless the legislation has the support of more than half of the Democrat's 59 votes. Since the Democrats lack 50% support within their party the legislation failed.

Regardless of what happens there will be an estate tax next year. The only question is whether the exemption will be $3.5 million or $1 million –and $ 2.5 million is a huge difference in the plans for millions of taxpayers.

For the full story click here.

The “up-in-the-air” situation with the estate tax is concerning.  It is best to have a plan of action that you can execute quickly once the direction is finally established.  If you’d like to discuss ways to assemble a plan in advance, either comment on this blog with your questions or call me to meet in person.     

 

Listening is Key with Aged Adults

Mary Lynn Pannen is one of the nation’s leading experts on Geriatric Care Management and Home Care for seniors. As President of Sound Options, she has built a very successful home care business in the Puget Sound region.  Mary Lynn recently described her company’s service this way: “Able to transform potentially stressful circumstances into readily manageable solutions, Sound Options works with clients with a wide range of needs and medical conditions.” I was struck with how similar her mission is to my mission in constructing comprehensive and well-thought-out estate plans.  For those of you wrestling with plans for your older adult parents, I thought you would benefit from this recent blog post by Mary Lynn.

One of the reasons that I am intrigued with working with older adults is their life stories. I really like listening to how a person summarizes their life or how they remember the simplest detail. Listening is a pleasure and it is so important while helping older adults live out the last chapters of their lives. One can learn so much by listening. As an adult child you may hear things you never knew before and that may allow you to see your parent in a different light. You may learn the very reason for why your parent made decisions – good or bad. I find listening creates for me more understanding and that at the end of the day we all have similar wishes and desires.

1. If possible have your older parent participate in planning their care
2. Create a safe environment for your parent
3. Provide quality of life- this will be different for each person.
4. Talk about the old times. Reminiscing can be very satisfying to both your parent and you.
5. Do not make promises you cannot keep
6. Make sure that their end of life desires are fulfilled
7. Do not forget that your parent is an adult – not a child
8. Provide ways for your parent to remain as safely independent as possible

Planning and sensitivity becomes even more important with age.  And it is even more important to address the personal as well as the factual elements of the situation.  If I can be of assistance in “transforming your potentially stressful circumstances into readily manageable solutions”, please, let’s talk.  Call me.

Home is where the heart is

Many of us have a secret fear that grows as we age. We worry about
whether or not we will be able to take care of ourselves through our
golden years. Some of us worry that we will be forced from our homes and
moved to an assisted living center, against our will.

There are few experiences in life more disturbing than being uprooted
from the home you have come to love and feel safe in. After all, for
many of us that home is where our families lived and grew. It is not
just where we live – it is where our memories are housed, too.

This is a good example of why it is important to have access to a lawyer
with elder law experience. There are many times when a good lawyer can
assuage your fears, and you very well may find that you are able to
remain in your home if that is your wish. Even if you need some help
around the house, it is entirely possible that you will still be able to
live a long and independent life, without the necessity of moving to an
institution.

Of course some of us would prefer to make that move, but we worry about
how we might go about picking a reputable, responsible facility for our
new home. Your lawyer can help with that decision, too.

Problem solving is a fact of life. We all have to deal with the little
bumps that pop up here and there on the road of life. But we do not have
to face those problems alone. In a very real sense that is what an elder
law professional aspires to do – help you get the most out of life, on
your terms, while living in the surroundings that are best for you.

What's the big deal with probate?

Because television has brought the courtroom, and the law office, into
our homes on a regular basis, many of us are familiar with legal terms
that we may not understand all that well. One of those terms is,
"probate." Like most people, you have probably heard the term around the
water-cooler at work, or during a discussion with friends or family.
Still, as common as the term may be, most people cannot explain to their
friends of family what probate actually is.

In basic terms, probate is a legal process for dealing with the estate
of a person who has passed away.

What is less well known than the definition of the word, is the fact
that the costs of probate can be significant. Then again, the costs can
be minimal. The determining factor between a long, protracted probate
that consumes much of your estate, or a relatively quick, inexpensive
probate, is – planning. Believe it or not the length and cost of the
process very much depends on how well prepared you are before the
probate process begins. In effect, the more specifically you provide
instructions for the administration of your estate, the more of your
estate stays in the family – or goes where ever you choose it to.

Put in even more simple terms – probate is a legal process that
determines where all your accumulated wealth and belongings will go
after your death. If you plan well, the gains you have amassed in your
life will go where you wish it to go, and benefit those you wish it to
benefit. On the other hand, if you plan poorly, or not at all, your
accumulated wealth will go where lawyers and judges you probably never
met think you would have wanted it to go.

That is the exact reason that a good lawyer will ask you to update your
will periodically. Because as with any other endeavor in life, the
better you plan, the better the results, and the happier you and your
family will be in the end.